United States District Court, D. New Jersey
L. LINARES, JUDGE
before the Court is the motion of Mikay Tejeda
("Petitioner") to vacate, set aside, or correct his
sentence brought pursuant to 28 U.S.C. § 2255. (ECF No.
1). Following an order from this Court, the Government filed
a response to the motion. (ECF No. 5). Despite ample
opportunity (see, e.g. ECF No. 8), Petitioner failed
to file a reply. For the following reasons, the Court will
dismiss Petitioner's motion as untimely.
about May 4, 2012, a federal grand jury returned a one count
indictment charging Petitioner, Mikay Tejeda, with conspiracy
to distribute and possess with intent to distribute five
kilograms or more of cocaine. (Docket No. 12-312 at ECF No.
38). Following a jury trial, Petitioner was found guilty on
October 1, 2013. (See Docket No. 12-312 at ECF No.
106). Following trial, however, two issues came to light
which required the Court's attention, resulting in a
hearing held on October 20, 2013. (See Docket No.
12-312 at ECF No. 152). The first issue discussed at the
hearing concerned the rough notes of a federal agent taken
during an interview with Neil Van Den Berg, a witness
relevant to Petitioner's trial. (Id. at 4).
Throughout trial, when those notes were requested, the
Government stated that no such notes existed. (Id.).
After trial, however, the Government informed the Court that,
after the trial verdict had been reached, the agent involved,
who had previously stated that he did not remember taking
notes, found rough notes of the interview when moving offices
on October 4, 2013. (Id. at 4-5). Upon the discovery
of the notes, the Government provided them to both the Court
and defense counsel. (Id. at 5-6). The second issue
which came to light at the hearing was that certain documents
which had not been entered into evidence, including the
Government's rebuttal notes, had been mixed in with the
evidence and had made it into the jury room with the jury.
(Id. at 9-11). Based on these two issues, counsel
for the defense requested, and was granted, two weeks to file
any motion he may have for a mistrial or other relief based
on these two issues. (Id. at 11).
the course of the next several weeks, the parties negotiated
and eventually agreed to a plea agreement under which
Petitioner would plead guilty to a superseding information
charging him with the distribution and possession with intent
to distribute of five or more kilograms of cocaine, which the
parties agreed would not violate double jeopardy,
resulting in Petitioner receiving a sentence falling into a
guidelines range between 23 and 27 with a stipulated criminal
history category of I, in return for a dismissal of the
jury's prior verdict against him. (See Docket
No. 12-312 at ECF No. 125). That agreement also contained an
explicit appellate waiver in which Petitioner agreed not to
file any appeal or § 2255 motion challenging his
sentence if he were sentenced pursuant to the agreement.
(Id. at 8-9).
December 20, 2013, Petitioner appeared before the Court and
pled guilty pursuant to the agreement. (Docket No. 12-312 at
ECF No. 151). On May 7, 2014, Petitioner appeared before the
Court and was sentenced to a term of imprisonment of seventy
eight months accompanied by a three year period of supervised
release. (Docket No. 12-312 at ECF Nos. 131, 133). This Court
also dismissed the jury's verdict at that time.
(See Docket No. 12-312 at ECF No. 131). Petitioner
did not file an appeal. (ECF No. 1 at 2). On November 13,
2015, however, Petitioner moved for a reduction of sentence
pursuant to 18 U.S.C. § 3582(c) based on a retroactive
amendment to the sentencing guidelines issued in 2014.
(Docket No. 12-312 at ECF No. 146). On November 16, 2015,
this Court granted that motion and reduced Petitioner's
sentence to 64 months of imprisonment. (Docket No. 12-312 at
ECF No. 147).
prisoner in federal custody may file a motion pursuant to 28
U.S.C. § 2255 challenging the validity of his or her
sentence. Section 2255 provides, in relevant part, as
A prisoner in custody under sentence of a court established
by Act of Congress claiming the right to be released upon the
ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such a sentence, or that
the sentence was in excess of the maximum authorized by law,
or is otherwise subject to collateral attack, may move the
court which imposed the sentence to vacate, set aside or
correct the sentence.
28 U.S.C. § 2255(a). Unless the moving party claims a
jurisdictional defect or a Constitutional violation, in order
to merit relief the moving party must show that an error of
law or fact constitutes "a fundamental defect which
inherently results in a complete miscarriage of justice, (or)
an omission inconsistent with the rudimentary demands of fair
procedure." United States v. Horsley, 599 F.2d
1265, 1268 (3d Cir. 1979) (quoting Hill v. United
States, 368 U.S. 424, 429 (1962)), cert. denied
AAA U.S. 865 (1979); see also Morelli v. United
States, 285 F.Supp.2d 454, 458-59 (D.N J. 2003). Prior
to ordering an answer to a § 2255 motion, Rule 4 of the
Rules Governing Section 2255 Proceedings requires that the
district court review a petitioner's § 2255 motion
and "dismiss the motion" if it "plainly
appears from the motion, any attached exhibits, and the
record of prior proceedings that the moving party is not
entitled to relief."
An evidentiary hearing is not required
U.S.C. § 2255(b) requires an evidentiary hearing for all
motions brought pursuant to the statute "unless the
motion and files and records of the case conclusively show
that the prisoner is entitled to no relief." 28 U.S.C.
§ 2255(b); United States v. Booth, 432 F.3d
542, 545 (3d Cir. 2005); United States v. Day, 969
F.2d 39, 41-42 (3d Cir. 1992). "Where the record,
supplemented by the trial judge's personal knowledge,
conclusively negates the factual predicates asserted by the
petitioner or indicate[s] that petitioner is not entitled to
relief as a matter of law, no hearing is required."
Judge v. United States, Docket No. 13-2896, 2015 WL
4742380, at *3 (D.N.J. Aug. 11, 2015); see also
Government of Virgin Islands v. Nicholas,759 F.2d 1073,
1075 (3d Cir. 1985); United States v. Tuyen Quang
Pham,587 Fed.Appx. 6, 8 (3d Cir. 2014); Booth,
432 F.3d at 546. For the reasons set forth below,
Petitioner's motion is untimely and there is ...